Appellate Division
(Criminal)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Nazmun Ara Sultana. J
Syed Mahamud Hossain J
Md Imman Ali J
Md Shamsul Huda J
Shahjahan Khalifa and others … Petitioners
Vs
State …… Respondent
Judgment
August 6th, 2012.
Code of Criminal Procedure (V of 1898)
Section 161
Statement recorded under section 161 of the Code is not a substantive evidence. Mere delay in recording the statements of the witness under section 161 of the Code, cannot be considered fatal if the evidence adduced by them in court appears to be credible after sifting.
Md Nawab Ali, Advocate-on-Record-For the Respondent.
Md Shohrowardi, Deputy Attorney-General, instructed by Madhzu Maloti Chowdhury Barua, Advocate-on-Record-For the Respondent.
Judgment
Syed Mahmud Hossain J: This criminal petition is by the convict-petitioners for leave to appeal from the judgment and order dated 16-7-2008 passed by the High Court Division in Criminal Appeal No.3399 of 2001 dismissing their appeal and affirming the judgment and order on 5-7-2001 passed by the learned Additional Sessions Judge, Court No. I, Pabna, in Sessions Case No.110 of 1994 arising out of Bhangoora PS Case No.2/31 dated 15-11-1993 convicting them under sections 302/34 of the Penal Code and sentencing them there under to suffer imprisonment for life and directing each of them to pay a fine of Taka 3,000 only, in default, thereof each to suffer further sentence of six months rigorous imprisonment.
2. The facts, leading to the filing of this criminal petition for leave to appeal, in short, are that on 15-11-1993, informant Md Ismail Hossain lodged First Information Report (FIR) with Bhangoora Police Station under sections 302/34 of the Penal Code.
3. Prosecution case, in short, is that there was a ditch behind the informant’s house on the western side of the accused Shahjahan. The ditch was in ejmali and suitable for fishery. There was no demarcation of the respective shares of the ditch between the informant and accused Shahjahan. The informant put some branches of trees in his portion of the ditch about 15/20 days back. On 15-11-1993, at about 2-30 PM accused Shahjahan, Hariz Khalifa and Saidul Khalifa began putting the branches of trees in the portion of the informant. After that, the informant along with his younger brother carne down to the ditch by a boat and showed the line of demarcation between them. Accused Shahjahan replied that since he (the informant) filled up the ditch with branches of trees the informant could not remove those if he dared to do so. At that time, Yunus Khalifa, Alefuddin Khalifa began throwing bricks aiming at the informant. At that point of time deceased Karban came there and requested both the parties to stop quarrel assuring them that he would settle the dispute amicably. After that, Korban Ali proceeded towards the home of the accused and his son Golam Mowla had been returning from the paddy field and Korban was ahead of his son and when they reached in front of the house of the accused, Shahjahan, Hafiz, Saidul, Alepuddin, Yunus, Gafur, Sohrab Pramanik, Ayub Pramanik and Torab Sarder, all of a sudden, in a preplanned manner, attacked the father and the son being armed with lathi, ‘falah’ etc. Accused-Shahjahan dealt of ‘falah’ blow on Karban Ali and as a result, he fell to ground and Saiful gave lathi blow on his head of the informant and he became senseless. The accused murdered Korban and his son Golam Mowla at the place of occurrence. Ayesha Khatoon wife of Korban Ali, Abdul Bari and Rowshan Ara Khatuan were seriously wounded by the accused. Hearing the hue and cry, the people living around rushed to the place of occurrence whereupon the accused fled away. Subsequently, an FIR was lodged with the Bhangoora Police Station resulting in Bhangoora PS Case No.2/31 dated 15-11-1993.
4. Police took up investigation of the case and recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure. On conclusion of the investigation, police submitted charge-sheet against nine accused under sections 302/34 of the Penal Code on 7-4-1994.
5. The case record was sent to the Court of the Sessions Judge, Pabna, where it was registered as Sessions Case No.110 of 1994. On receipt of the case record on transfer, the learned Additional Sessions Judge framed charge against the accused including the leave petitioners under sections 302/34 of the Penal Code. In presence of the accused including convict-petitioners in the dock, the charge was read over to them who pleaded not guilty and demanded trial. The prosecution examined 22 witnesses in support of its case while defence examined none.
6. After close of the prosecution case, the accused including the convict-petitioners in the dock were examined under section 342 of the Code of Criminal Procedure, to which, they pleaded not guilty and repeated their innocence. The defence did not, however, examine any witness.
7. The defence case as could be gathered from the trend of cross-examination of the prosecution witnesses is of total denial. The accused had been falsely implicated in this case out of enmity inasmuch as they were not responsible for/connected with the occurrence.
8. The learned Additional Sessions Judge, Court No.1, Pabna, on the basis of the evidence on record, found the leave petitioners guilty of the offence charged and by his judgment and order dated 5-7-2001 convicted the petitioners under sections 302/34 of the Penal Code and sentenced them to imprisonment for life and to pay a fine of Taka 3,000 each, in default, to suffer rigorous imprisonment six months more.
9. Being aggrieved by and dissatisfied with the judgment and order of the trial Court, the leave petitioners moved the High Court Division by filing Criminal Appeal No.3399 of 2001. The learned Judges of the High Court Division upon hearing both the sides by the judgment and order dated 16-7-2008 affirmed the conviction and sentence passed by the learned Additional Sessions Judge, Court No. I, Pabna and dismissed the appeal of the petitioners.
10. Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the leave petitioners have preferred this criminal petition for leave to appeal before this Division.
11. Mr Md Nawab Ali, learned Advocate on-Record, appearing on behalf of the leave petitioners, submits that the PWS made contradictory statements in their evidence and that the investigating officer recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure after about one month of the occurrence and that the High Court Division without taking into consideration those broad aspects of the case affirmed the judgment passed by the learned Additional Sessions Judge upholding the conviction and sentence imposed upon the leave-petitioners and as such, the impugned judgment should be set-aside. He further submits that the prosecution could not examine any independent witnesses to prove its case and that the High Court Division relying upon the evidence of the partisan witnesses affirmed the conviction and sentence passed by the trial Court and as such, the impugned judgment should be set-aside and the leave petitioners should be acquitted of the charge levelled against them.
He lastly submits that the ‘falah’ used by the leave-petitioner, Shahjahan Khalifa was not made alamat and that the prosecution case that accused Shahjahan Khalifa dealt ‘falah’ blow on the person of the deceased Korban Ali was not proved and as such, the prosecution miserably failed to prove its case beyond reasonable doubt and that the High Court Division without considering this aspect of the case affirmed the conviction and sentence imposed on the leave-petitioners. We have considered the submissions of the learned Advocate, the impugned judgment and the materials on record. Admittedly, two persons, namely, Korban Ali and his son, Golam’ Mowla, were alone to death at the place of occurrence on the date and time as mentioned by the prosecution. The prosecution in total examined 18 witnesses of whom PW 2, Md Abdul Jabbar, PW 5 Md Abul Hossain, PW 8, Sufia Khatun, PW 9, Golam Hossain and PW 11, Jahanara Khatun, are eye-witnesses to the occurrence. The High Court Division having considered the evidence of the eye-witnesses, in particular, and the other prosecution witnesses, in general, case to the finding that the leave-petitioners murdered both the deceased, namely, Korban Ali and Golam Mowla.
12. The High Court Division also came to a finding that the leave-petitioners committed the offence in a premeditated manner and that while they were inflicting blows on deceased, Korban Ali and his son, Golam Mowla, proceeded to rescue his father and that he was brutally killed by the leave-petitioners.
13. It is contended that the prosecution witnesses were examined about one month after the occurrence under section 161 of the Code of Criminal Procedure and as such, for inordinate delay in recording their statements, the evidence adduced by them in Court should have been discarded. Admittedly, a statement recorded under section 161 of the Code of Criminal procedure is not a substantive evidence. Mere delay in recording the statements of the prosecution witness under section 161 of the Code of Criminal procedure cannot be considered fatal if the evidence adduced by them in court appears to be credible after sifting.
14. In the case in hand, both the trial Court and the High Court Division properly assessed the evidence of the witnesses adduced before the Court and found that there was no material contradiction or omission in their evidence.
15. Admittedly, soon after the occurrence, accused Shahjahan who was carrying the ‘falah’ fled away from the place of occurrence with the ‘falah’ and as such, the failure of the prosecution in making the ‘falah’ as material exhibit cannot make its case doubtful.
16. The findings arrived at and the decision made by the High Court Division having been made on proper appreciation of laws and facts do not call for interference.
Accordingly, this criminal petition for leave to appeal is dismissed.
